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Case Selection and Dissent in Courts of Last Resort: An Empirical Study of the Israel Supreme Court

This article evaluates 3,344 appeals to the Israel Supreme Court (ISC) to assess case selection, case outcomes, and rates of dissent and concurrence, with an emphasis on the behavior of individual justices. We show that analyses of judicial activity, and of individual justices’ behavior, in courts with discretionary jurisdiction should account for the court’s case selection process. This finding has implications for studies of all courts with discretionary appellate jurisdiction and for studies of individual judicial behavior. ISC assignment of cases for preliminary screening by individual justices has a substantial non-random component. Over 95% of the discretionary jurisdiction criminal cases were screened by two justices, who significantly differed in the rate at which they referred cases to 3 judge screening panels. Screening outcomes also varied significantly in discretionary civil cases. The rate of granting review was highest in tort cases. The rate of granting review was substantially higher in cases involving female defendants than in cases involving male defendants. With respect to outcomes in cases reaching the merits, the high rate of reversal in discretionary jurisdiction cases is not a consequence of one or two justices’ behavior; granting review of cases to reverse them is an ISC-wide practice. Regardless of the initial screening justice, the reversal rate in discretionary cases, civil or criminal, was well above the 24% to 32% reversal rate in mandatory jurisdiction cases. Dissent rates were low, less than 2% overall and only 3% in discretionary jurisdiction cases. Rates of concurrence with an opinion by an individual justice were substantially higher.